Arbitration Award a Victory for Nurses Who Become Ill; Hamilton Health
Sciences Found to Be Reckless

TORONTO , Oct. 26 /CNW/ - The Ontario Nurses' Association (ONA) has won another important arbitration decision related to disability management, with a finding of "bad-faith behaviour" and "reckless" management against Hamilton Health Sciences Centre (HHSC) in the case of an ONA registered nurse who tried to return to work following an illness.

In the award, released on October 14, 2009 , Arbitrator Daniel Harris found the nurse is entitled to damages because of her "unnecessary suffering" due to HHSC's "maliciously thwarting" of her return to work. The quantum of damages will be determined at a later date if it is not agreed between the parties.

"It is ironic that HHSC, deemed by a major Canadian magazine to be one of Canada's top 100 employers, is being held accountable again for contributing to the suffering and distress of one of our registered nurses, who as a dedicated professional sought to return to her regular duties once she was well," said ONA President Linda Haslam-Stroud, RN.

Two grievances were filed by the nurse, who went on sick leave in October 2005 and had been cleared to return to her regular nursing duties a month later by her family physician. However, acting on the advice of third-party attendance management consultant Cowan Wright Beauchamp, HHSC refused her return to work for at least an additional seven months, although she continued to submit medical notes from her physician indicating she was able to return to her regular duties. Cowan is contracted by the hospital to manage Short-Term Disability (STD) claims, and for assessing its return to work programs.

The nurse was finally brought back to work on a "special project" involving sedentary duties in August 2006 , just days before arbitration commenced. Shortly after arbitration started, she was sent for an independent medical assessment that found her able to return to her regular nursing duties. Arbitrator Harris allowed both grievances, finding Cowan's medical director acted with "ill will and acrimony." In his award Arbitrator Harris stated, "It is clear from the file here the hospital was aware of Cowan's malicious and unsupported accusations and the hospital was content to ride along with Cowan's behaviour ... In the very least, Cowan demonstrated time and time again, to the hospital, that it was unfit to perform the tasks contracted to it and the hospital was reckless in continuing that retainer."

"Arbitrator Harris found the consultant's notes about our member were filled with inaccuracies and based on suspicion and innuendo, yet they were accepted without question by the employer. They painted our member as colluding in some kind of fraud with her physician, and Arbitrator Harris has deemed this inference of fraud to be a 'model of bad faith'," said Haslam-Stroud.

"Employers need to understand there is a process for getting injured or ill workers back to work, and it is the employer's responsibility to make informed decisions. HHSC should not have accepted the kind of character assassination that occurred in her case. Employers must not act in a malicious way when dealing with ill or injured workers, but should be treating them with compassion and support."

HHSC continues to use Cowan Wright Beauchamp despite ongoing concerns about the way they've been dealing with ONA nurses, and the hefty price tag of litigation. This award is one of a number of successful arbitrations for ONA on attendance management against HHSC.

In ONA's view, taxpayer dollars would be better spent invested in quality patient care.

ONA is the provincial union representing 54,000 registered nurses and allied health professionals, as well as over 10,000 nursing students, working in Ontario hospitals, long-term care facilities, the community, public health, industry and clinics.

For further information: Ontario Nurses' Association, Melanie Levenson, [phone], ext. 2369